Legal Ease


Managing the Rise of Baseless Whistleblower Retaliation Claims


By Richard D. Alaniz In fiscal 2012, the U.S. Department of Labor’s Occupation-


al Safety and Health Administration (“OSHA”) reported that employees filed almost 2,787 whistleblower retaliation claims. This number has been on the rise over the past few years, up from less than 2,200 in fiscal 2009. OSHA frequently trumpets its successes in these cases: for


example it issued a press release earlier this year after a signal- man with Chicago’s Metra commuter railroad line was awarded $38,080 overtime, interest, compensatory damages and attor- ney’s fees.


“An employer does not have the right to retaliate against


employees who report safety issues,” said Nick Walters, OS- HA’s regional administrator in Chicago, in a press release. “When employees can’t report safety concerns on the job with- out fear of retaliation, worker safety and, in this case, passenger safety on Metra, becomes a serious concern.” What Walters did not say in the press release—what OSHA


hardly ever says except in the “Statistics” section of its web- site—is that this type of finding is the exception, not the rule. In fact, according to OSHA’s own statistics, a mere 2% of claims were found to merit agency action.


Despite the fact that only 45 of the 2,787 cases fall into the


“merit” category (1,665 were dismissed, 565 were withdrawn and the 592 were settled), employers still must spend a great deal of time and money fighting these types of claims before they are withdrawn or dismissed.


In order to properly respond to meritless whistleblower re-


taliation claims, companies need to understand trends and de- velopments in this area. They must also be prepared about how to respond if one of their employees claims retaliation.


OSHA & Whistleblower Laws According to the Occupational Safety & Health Act of


1970 (“OSH Act”), employers must provide a “safe and health- ful workplace.” Along with the OSH Act, Congress has expand- ed OSHA’s whistleblower authority to protect workers from discrimination under 21 different federal laws. Once an employee files a retaliation complaint, OSHA will launch an investigation. If the “evidence supports the employ-


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ee’s allegation,” and the parties do not settle, the agency will usually issue an order requiring that the employee be reinstated, back wages paid, benefits restored and other possible remedies “to make the employee whole.”


Next Steps For employers, the rise of meritless whistleblower retalia-


tion claims represents a worrisome trend from a legal, cost and reputational standpoint. Responding to these types of claims is time-consuming and often stressful. Companies that find them- selves accused of retaliating against whistleblowers can face devastating PR. A proactive approach to avoiding these types of claims, and


a swift response if they are filed is the best way to minimize or entirely avoid issues.


• Review existing whistleblower policies Companies should consider OSHA’s renewed emphasis on whistleblowing a wake-up call. Companies should review their existing whistleblowing policies and update them wherever necessary.


• Develop a multi-disciplinary approach Whistleblowing claims touch on a number of different functions, including Legal, HR and Compliance. Representa- tive from these groups should meet regularly to review whistle- blower claims, share information and provide feedback to each other.


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August 2013


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